November 30, 2010

From a district court in Ohio, which granted all of the federal government's motion to dismiss a lawsuit against the health care reform act except for as it relates to the Commerce Clause question:

The defendants' [Secretary of Health and Human Services Kathleen Sebelius, et al] motion to dismiss contends that the individual mandate requiring the purchase of health insurance as set forth in Section 1501 under the title of "Requirement to Maintain Minimum Essential Coverage" is a proper congressional exercise under the Commerce Clause. Secondly, the defendants contend that the passage of Section 1501 of the Act is a valid exercise of Congress's independent power under the general welfare clause. Defendants argue that Count 1 of plaintiffs' second amended complaint* should be dismissed pursuant to 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can granted based on the recent teachings of the Supreme Court of the United States in Bell Atlantic Corp. v. Twombly, 550 U.S. 554, (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).

At this stage of the proceedings, when considering the defendants' motion to dismiss, the issues before the Court regarding the commerce and the necessary and proper clauses constitute the primary issues before the Court with respect to the validity of the challenged Act. The Court finds that the allegations advanced by plaintiffs in Count One of the second amended complaint at this point pass the "plausibility" teachings of Twombly and Iqbal, supra.

It is the Court's view in this case that plaintiffs' Commerce Clause claim is not subject to a final resolution based on a motion to dismiss, but requires additional consideration by the Court in further proceedings.

Peter Leibold told HRW that the Commerce Clause argument against the individual mandate is stronger than the States' rights argument against Medicaid expansion, which was made by Florida Attorney General Bill McCollum (R). That is because the federal government is "effectively requiring the purchase of a product in the commercial stream, and the Commerce Clause has not been pushed that far" previously, he said.

November 27, 2010

FRC senior researcher Peter Sprigg told me that an end to Don't Ask, Don't Tell would lead to more American servicemen receiving unwelcome same-sex fellatio in their sleep, part of a long line of reasoning from Sprigg suggesting that gay men are more likely to be sex offenders than anyone else.

While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states.

Been saying that for more than a year now.

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

Ye gods.

Without that language — which leads ultimately to a determination of whether the entire Act might survive once a single provision as operationally crucial as the individual insurance mandate is found unconstitutional — it's left for the courts to decide. Although any judicial orders of the trial level court — which is where the legal challenges are now ensconced — barring the enforcement of the law will most likely be postponed pending a higher court's decision.

And that higher court will most probably be the U.S. Supreme Court, and that Court is not likely to rule until such time as smack dab in the middle of the 2012 presidential and Congressional campaigns.

Woe betide somebody (See, e.g., "Obamacare" vs. "Romneycare").

A worse oversight than the lack of that specific language obtains from Congress's failure to convincingly articulate that its authority to enact the insurance mandate derives from something other than its power to "regulate Commerce ... among the several States."

As noted at this space earlier, the federales sustained a body blow when a district court in Florida, decidedly unimpressed by arguments that the mandate was not a regulation of interstate commerce but rather a tax, criticized the administration for cobbling together an ex post facto defense of the law, one which the law itself doesn't appear to have contemplated. So long as the legal challenges remain focused on the Commerce Clause, which is where its critics prefer the focus to remain, the mandate is in much greater danger of invalidation.

A White House official said that in the meantime "the litigation is really not having an impact" on the pace of putting the law into effect: "I talk weekly to officials in States that have sued us, and in States that have not. I cannot tell the difference between them."

If one of them is Wisconsin's attorney general J.B. Van Hollen, it's no wonder you can't tell the difference, because both Van Hollen and the governor-elect have been chomping at the bit to join the litigation.

Doubtless there is skepticism even within those States which will not join the litigation. There has to be, given both the unprecedented interpretation of the Commerce Clause that will be required to sustain the mandate's viability and the current make-up of the Court.

Assuredly, Congress and the president would have been on firmer ground implementing wholesale a single-payer system. A nightmare Supreme Court ruling may be what "compromise" gets them instead.

November 25, 2010

November 24, 2010

The current House majority leader T. DeLay contends that high crime rates and tragedies like the Columbine assault will continue as long as schools teach children "that they are nothing but glorified apes who have evolutionized [sic] out of some primordial soup of mud."

But surely the insight he has grasped — that murder is worse than contraception — is so basic it should prompt a reflection on the dogma as a whole.

Or else so basic you don't need any pope to figure it out.

If you are wondering where Jesus would stand on perpetuating the infections and deaths of million or adjusting a technical religiously mandated rule, then you haven't read the Gospels in quite a while.

Because it's self-defeating for an institution devoted to the infallible legislation, enforcement, and adjudication of its own particular species of religious dogma to remind anybody of those Pharisees.

FRC senior researcher Peter Sprigg told me that an end to Don't Ask, Don't Tell would lead to more American servicemen receiving unwelcome same-sex fellatio in their sleep, part of a long line of reasoning from Sprigg suggesting that gay men are more likely to be sex offenders than anyone else.

November 23, 2010

His silly swipe at the alderman makes you wonder if Patrick McIlheran has ever made any attempt to understand what is going on in city government. That seems like a prerequisite for anyone presuming to instruct us on how it works.

[T]en appeals and thirteen underlying lawsuits ... all arise out of allegations of sexual abuse committed by former priests of the Archdiocese of Milwaukee. In their respective complaints, all of the plaintiffs allege causes of action for negligent misrepresentation, stating that the Archdiocese represented that children were safe in the presence of the priests despite high-ranking personnel having knowledge of the priests' histories of sexual abuse.

The Archdiocese argues that because it did not intend to harm the plaintiffs or intend to induce the plaintiffs into any action, the allegations in the plaintiffs' complaints are within coverage provided under the [Archdiocese's insurance] policy.

[W]e conclude that ... coverage for the negligent misrepresentation claims does not exist. Because the representations made by the Archdiocese constitute "volitional acts," they cannot be considered "occurrences" within the meaning of the [commercial general liability] policy.

Yesterday evening when the school board in West Bend, WI held a public meeting to discuss plans to attach local Baptist pastor Bruce Dunford's K-through-7 Crossroads Academy to the public education system, the American Civil Liberties Union was there.

After much apparently impassioned and raucous debate from the floor, the waving of banners, and the standing of ovations, the board rejected formalizing the proposal by four votes to three.

A representative of the ACLU posted to its Twitter account thumbnail summaries of several of the colloquies delivered by citizens who spoke against financing the charter school's parochial curriculum.

Among the more telling dispatches:

Former [school board] member warns of personal & petty motives of some [current board] members. Cautions against lawsuits if it gets passed.

And:

Passionate pastor from Sheboygan shouting about his personal calling & forgetting our moorings. Not sure if he was pro or con.

And:

[S]peaker expresses her admiration for Constitution [and] exposes 3 School [board] members as part of sponsoring church.

According to the Journal-Sentinel, "Dunford denied that the school would teach religion in violation of the law," a denial difficult to square with the West Bend Daily News's report that "the charter school would teach creationism in its science classes."

The latter is a de facto admission of religious instruction according to innumerable decisions of various federal courts reaching back decades. In 2005, a federal judge in Pennsylvania found the most recent creationist Trojan horse, "intelligent design," to be religion for First Amendment purposes and thus barred from state support.

Even so, politically activist creationists have shown little sign of abandoning their plans to appropriate the rubric of science for purely religious purposes, nor should anybody expect them to so desist.

Amusingly, when the militant creationists Weigand and Marquardt were jockeying for influence on the school board last winter, top conservative blogger "Boots & Sabers" opined that, "Nobody but leftist reactionaries even consider this an issue in this election."

Rather, nobody but someone with a profound ignorance of the issue and its legal history would so naively assert its insignificance. Last night its latest turkeys attempted to roost and were justly thwarted.

November 22, 2010

The moral authority of the Roman Catholic hierarchy is at its lowest ebb since the Inquisition. In the United States, the once-influential bishops have willingly transformed themselves into a mascot-lobby for the Republican right.

Timothy Dolan's job is to put the best face on the reactionary hierarchy's slow motion act of self-destruction.

The Reverend Cedric Miller said his wife had an extramarital affair with the male church assistant. Miller said he participated in many of the sexual encounters and said the assistant's wife was sometimes present, too ... during Thursday Bible study meetings and Sundays after church.

November 19, 2010

Contrary to the State's position, the term "residing" in the address reporting requirement plainly does not encompass a park bench — or a heating grate, bush, highway underpass, or other similar on-the-street location, for that matter.

Dinkins's conviction — for failing to report where he'd be living upon his release from prison — was reversed because he didn't have any residence to report, thus he couldn't have reported any residence.

November 15, 2010

One of the new allegations raised by Joe Miller campaign spin doctor Floyd Brown was from a Miller write-in observer in Cordova who claimed to have seen several ballots for Lisa Murkowski written in the same handwriting. . . .

"Somebody with Parkinson's disease, you know, their hand shakes but they're fully capable of voting and they go out to the poll to vote, they may very well ask for somebody who could write legibly, would you please write the name in for me," said Alaska lieutenant governor Craig Campbell.

You don't hear this very often: "Joel Winnig doesn't expect to win in his bid for a place on the State Supreme Court," reports the Capital Times. "But he's hoping his candidacy will add a positive note to an electoral process that in recent years has been marked by rancor. 'I'd just like to see it cleaner,' says the longtime Madison attorney."

November 13, 2010

Train manufacturer Talgo, which has its U.S. headquarters in Seattle, has invested millions in a new manufacturing facility in Milwaukee, Wisconsin. While we hope Wisconsin wakes up to the permanent job opportunities from train manufacturing, we recommend you pursue the relocation of the Talgo facility to Washington State — perhaps along the economically distressed area of southwest Washington. Our State has a long and successful history with Talgo — reaching back to the mid-1990s. The move would complement Amtrak's new maintenance facility in south Seattle.

From a letter to governor Christine Grigoire of the State of Washington, delivered by the Cascadia Prospectus, a conservative outfit subsidiary to Seattle's Discovery Institute, the notorious national clearing house for "intelligent design" creationism.

I am writing in response to your letter dated November 10th. I am aware that there are those who would attempt to pit incoming and outgoing administrations against each other. As you know, Governor Doyle and this administration have worked hard to avoid this. We will continue to work with you and your team in an orderly and responsible manner.

With respect to the specific items you mention, obviously you have not had the opportunity to be briefed on these items. For example, the health care exchanges you mention will require legislation and will not go into effect until 2013 at the earliest. The Charter Street Plant, on which work has begun, has natural gas capabilities along with the biomass fuel purchased from Wisconsin farmers and foresters.

Our offer to brief you on these and any other measures still stands.

Sincerely,

Daniel J. Schooff, Secretary
Wisconsin Department of Administration

Kudos, sir. Walker is reportedly set to authorize Attorney General J.B. Van Hollen to join a lawsuit challenging the constitutionality of the health care reform bill, yet he isn't even familiar with which provisions take effect when or how they are to be implemented.

"Personally, we would love to have [Talgo] stay in the State of Wisconsin," Walker added, which is remarkable, because only a couple of days ago Walker had urged the federal secretary of transportation to cut the rail equipment manufacturer's sales by half.

Miller's campaign disputed the charge, saying observers are simply challenging votes that don't meet the strict letter of the law — including those with minor misspellings of Murkowski's name or those with legibility or penmanship issues.

To be sure, deficiencies in either legibility or penmanship would serve to obscure accurate determinations of voter intent, which is exactly the standard of evaluating ballots that Tea Republican Miller at the same time argues is a subjective and therefore lawless one.

In this case, throwing out minor misspellings would disenfranchise voters for a technicality. I've traced use of the voter intent standard in State courts back to 1885, and Alaska has a particularly strong version of it.

If Talgo leaves, Milwaukee mayor Tom Barrett and his chief of staff Pat Curley have said, the city could consider legal action against the State to recover the millions of dollars it invested in renovating the Tower Automotive plant for the company.

I don't know how far they'd get with that. It was reported months ago that Talgo's commitment to the Milwaukee location extended only through 2012, when it was projected manufacturing would be complete on the Amtrak Hiawatha and Oregon DOT train sets.

I suppose the wisdom of the expense of helping Talgo set up operations in Milwaukee depends on your (political) perspective, but I'd question whether the State would be on the hook for those costs just because Talgo didn't secure more orders from the State.

The high speed line between Milwaukee and Madison was a nice plum dangled in front of Talgo but it was more of a hope than an intent.

Meanwhile the Journal-Sentinel's resident Walker-fluffer Patrick McIlheran argues that constructing a train between Milwaukee and Madison will eradicate the existing bus service, a prophecy substantially disconnected from the fact there are eight daily trains and more than 30 daily buses between Milwaukee and Chicago.

November 10, 2010

Under the [Wickard v. Filburn] decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same.

Compelling to stop is distinguishable from compelling to start. Stopping something assumes there was some thing happening that needed to be stopped, whereas compelling to start something acknowledges that there was no thing happening to begin with.

This remains at the crux of the argument: activity vs. inactivity, and Wickard v. Filburn offers no such obvious solution to that dilemma, whether the Commerce Clause empowers the regulation of inactivity.

Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says.

4. Place ballots [in this box lid] where the oval is marked for Write-In category (colored in, X, Star, Check) and THE NAME WRITTEN APPEARS TO BE A VARIATION OR MISSPELLING OF MURKOWSKI OR LISA MURKOWSKI. Also place in this lid any ballot that an observer challenges so that the director can make a determination.

There probably won't be enough ballots in Box Lid #4 to make a difference, but Tea Party Republican Joe Miller — he's the guy who handcuffs and "detains" reporters — insists that counting any ballot with even the slightest misspelling of Murkowski's name is unlawful.

And he's probably wrong about that, because Alaska's apparent statutory demand for electors to be perfect spellers is likely a too onerous and narrow requirement for a showing of "voter intent."

That a voter wrote Murkowsky or Merkowski instead of Murkowski shouldn't deny them a constitutional right and that right is certainly more compelling than a State requirement that all voters be spelling bee champions or else their otherwise lawful ballot is discarded.

Miller's claim — and what he claims the Alaska rule of law is — smacks of the voter literacy tests that plagued the pre-Civil Rights era.

But if there does happen to be a significant number of ballots in that category, we might count on Box Lid #4 to be 2010's hanging chad.

November 9, 2010

Rep. John Shimkus (R-Ill.), who will seek the Energy and Commerce Committee chairmanship, maintains that we do not have to worry about climate change because God promised in the Bible not to destroy the world again after Noah's flood.

Just the other day, governor-elect Scott Walker made overtures to the Spanish rail manufacturer Talgo, which has set up shop in Milwaukee, urging them to remain here despite Walker's opposition to the proposed high speed line connecting Milwaukee and Madison.

The idea is that Talgo would receive contracts to manufacture the train sets running between Wisconsin's two largest cities. In the meantime, Talgo has orders from the Oregon Department of Transportation for two trains running between Portland and Eugene.

That line is likewise part of the federal government's High Speed Intercity Passenger Rail Program. The Wisconsin governor-elect's latest bold move is to urge Secretary of Transportation Ray LaHood to scrap the national high speed rail program in its entirety.

That is, according to Walker's proposal, the trains Talgo is building for Oregon would be canceled as well. Last week Scott Walker was massaging Talgo, but this morning he wants to cut its sales in half.

Scott Walker campaigned on promises to deep-six the train, and to "create" 250,000 jobs in Wisconsin. Walker hasn't even assumed office yet, and he's already a few thousand of those jobs in the hole.

November 8, 2010

That is seriously the premise of McIlheran's column today. Reports McIlheran, when protesters staged a kiss-in along the papal parade route in Barcelona, they would have failed at perturbing Mr. Ratzinger, 83, as he had "endured the rise and fall of the Nazis."

Me too, whenever I hear about gay people, I automatically think of the Third Reich. I mean, who doesn't. Nazi regalia is sexy.

McIlheran was also comforted by the fact that because the kissing "tantrum was overwhelmed by reverence," fewer Spanish nationals will be tortured eternally in McIlheran's contemplated afterlife.

However McIlheran's source (a link he found on the internets) said it wasn't clear if the pope was aware of the kiss-in, as he communed with the faithful sealed in an airtight bulletproof glass box on wheels.

November 6, 2010

One of the Fox News business "experts" on the teevee this morning claimed that the Dow Jones Industrial Average* closed at 11,444 yesterday because of this week's Republican gains in the House of Representatives. Tuesday's election results were known well before trading opened on Wednesday morning, with the DJIA at around 11,200. After a couple of hours of stasis, it began to fall, and by 2:30 it had lost nearly 100 points. A late rally brought it back to 11,200: No change on the day, despite the Fox expert's Republicans theory.

Then on Thursday morning, after the federal reserve announced $600bn in hated stimulus spending, the noisy condemnation of which is what won Republicans their elections, the Dow Jones gained more than 200 points by 11 a.m. So the Fox News "expert" was basically just making stuff up — par for the course — and the market, which those Republicans speak of as if The Oracle, responded far more positively to the hated spending than to the election of Republicans.

Go figger.

* Note the steady losses during the last two years of the George W. Bush administration and the steady gains under the first two years of Barack H. Obama's (he's the sworn enemy of capitalism bent on destroying the American economy and way of life). Under whose would you prefer to have invested your privatized social security?

In 2009, the Federal Railroad Administration received 259 grant applications from 37 States and the District of Columbia requesting nearly $57 billion in funding — far exceeding the initial $8 billion available under the Recovery Act.

November 4, 2010

Wisconsin governor-elect Scott Walker has said he would let AG Van Hollen go ahead with the health care challenge.

The current governor should have let Van Hollen go ahead months ago but at this juncture, Van Hollen's joining one or more of the suits is largely shambolic, as much of the work has already been done.

The most important of the challenges, State of Florida v. DHHS, is shortly headed for the 11th Circuit Court of Appeals in Atlanta.

It's important because the district court resoundingly rejected the federal government's ex post facto rationalization that the so-called individual insurance mandate is authorized by Congress's power to tax. It seems to me not unfair to speculate that the feds devised the argument because there is such scant legal support for the proposition that the Interstate Commerce Clause — which empowers Congress to "regulate Commerce ... among the several States" — authorizes Congress to compel by coercive penalty the bringing into existence of the very commerce Congress might then regulate.

That tactic appears precluded by the plain text of the Constitution.

If the district court's ruling invalidating the tax power argument survives its appeal, then the individual mandate is in serious trouble. And even if the 11th Circuit does reinstate the validity of the federal government's power-to-tax argument, the Supreme Court as currently comprised — where this case is inevitably destined — will not be sympathetic to either the taxing or commerce power justifications.

Suspicion

Another significant challenge is contained in Virginia v. Sebelius, whose litigation is similarly well underway. The plaintiff's principal lawyer, Virginia AG Ken Cuccinelli, was recently observed dictating to Fox News's Greta Van Susteren what sounded suspiciously like a verbatim rehearsal of a blog post that appeared at this location nearly one year ago, so I have a hard time disagreeing with him.

So far the only court that has provided a positive result for defenders of the individual insurance mandate is one in Michigan, but that decision relied on an untenably selective reading of Gonzales v. Raich, the Supreme Court's most recent set of pronouncements on the (yes, "evolving") meaning of the Interstate Commerce Clause.

While it will be argued that Raich defines the Commerce Clause so broadly such that it leads in the direction required to support the validity of the individual mandate, at least in that case there was commerce already in existence — marijuana plants growing in a Californian's apartment, which are presumed to have value in commerce — over which the federal regulatory powers extended, no matter how attenuated was the regulated object from the regulation.

So I wouldn't expect the Michigan decision to stand.

Notorious

And if Scalia gets a crack at its interpretation of Raich — whose majority opinion Scalia did not join but rather wrote separately to agree with its result according to what he claimed was his "more nuanced" understanding — I would expect him to react violently.

And then there is the rejuvenatedly notorious Clarence Thomas, who will take the opportunity to reverse nearly every Commerce Clause decision since and including 1819's McCullough v. Maryland.*

Whatever the ultimate disposition in the ongoing set of cases, Van Hollen's ceremonial participation will have little effect either way.

Attorney General Van Hollen's energies will be better spent joining Obama and his press secretary in defending Congress's enumerated power to order the president to declare a "national day of prayer" annually in America because clearly, that legislative authorization is discoverable throughout Article I, Section 8 of the Constitution.

One firm that received $1.2M is Geron Corp., which is conducting the first trial therapies for quadriplegics using embryonic stem cells. Embryonic stem cells are derived from surplus in-vitro fertilizations that would otherwise be discarded. Johnson promised that is the first project he would abandon. We'll let him inform the quadriplegics.

Quadriplegia, I am willing to bet, is a far greater assault on freedom than any of Ron Johnson's insipid Fox News Channel talking points.

One of the harsher critics of US counterterrorism policy is US Sen. Russell Feingold (D) of Wisconsin, who is as critical of Obama's Afghanistan policy as he was of President Bush's Iraq policy. Senator Feingold has said since shortly after the 9/11 terrorist attacks that prolonged military operations in Islamic countries cause the US to become bogged down and lose sight of extremist threats popping up elsewhere.

In a Dec. 2 letter to Obama explaining his opposition to the president's Afghanistan troop build-up, Feingold said, "Al Qaeda and its affiliates are located in Yemen, Somalia, North Africa, and other places around the world."

"Rather than investing so many of our resources in Afghanistan, we should pursue a comprehensive, global counterterrorism strategy," he said.

November 1, 2010

Ironically, a big factor in Feingold's struggles may be the stubborn independence he's supposedly lost. Consistent with his longtime opposition to unlimited campaign spending by outside groups, Feingold has told organizations that support him, including the Democratic Senatorial Senate Committee, to stay away from his race.